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Both individuals and businesses are defrauding the NHS, but preventing the crime is not easy, writes Sally Calverley. Sally Calverley is a commercial and property litigation partner at Capsticks.
Every year the National Health Service (NHS) loses £130m of taxpayers' money through forged prescription forms and patients avoiding prescription charges. Money is also lost when doctors, opticians and dentists claim for services which are not necessary, or not carried out at all.
The Audit Commission and the police are currently investigating one optician for fraud across 28 health authorities in the South East. The amount lost by the NHS is, as yet, unknown but the total sum paid to this one firm is believed to be around £6m.
Identifying fraud in the NHS is particularly difficult because of the huge number of patients and the time involved in checking the accuracy of claims.
Opticians, for example, provide sight tests and spectacles to members of the public and then claim money back from the NHS if their customer is eligible for help. Each sight test and each pair of spectacles generates a piece of paper which then has to be manually processed by the local health authority.
The customer may not live in the area of the health authority and the authority cannot automatically cross-check information with benefits agencies or other sources.
The system is open to abuse by patients and practitioners and can only be identified by checks by vigilant NHS employees.
Similarly, the practical difficulties of proving the fraud have proved challenging even where there are assets to be recovered.
Each claim form represents a distinct cause of action which must be separately proved, even though the value of the individual claim form itself is only £30 in the context of a claim totalling thousands.
A case worth £600,000 can involve 60,000 pieces of paper, so whatever the merits of the case, the health authority has to think very carefully before committing itself to the expense and time of taking litigation.
This means law firms need management systems backed up by judicious use of a database to help identify patterns of claims across health authorities and patient profiles.
Another difficulty is preventing a fraudulent optician from continuing to practice. Opticians are independent contractors who operate under a "statutory contract" with the NHS (R v Kensington Chelsea and Westminster FHSA ex parte Roy). This contract can only be terminated if the optician is struck off by the General Optical Council or is removed from the "NHS lists" by the NHS tribunal.
The NHS is currently recruiting a "fraud buster" and instigating measures to crack down on fraud. Health authorities are acting together to solve these issues and there is likely to be a lot more litigation on this front.